Knapik v. Atty Gen USA

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

9-17-2004

Knapik v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-2787

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PRECEDENTIAL

Peter D. Keisler

UNITED STATES Assistant Attorney General, Civil Division

COURT OF APPEALS Emily Anne Radford, Esquire

FOR THE THIRD CIRCUIT Assistant Director

Douglas E. Ginsburg, Esquire

John M . McAdams, Jr., Esquire

No. 03-2787 Aviva L. Poczter, Esquire

Nicole Nardone, Esquire (Argued)

Department of Justice Civil Division

JAN KNAPIK, Office of Immigration Litigation

P.O. Box 878

Petitioner Ben Franklin Station

Washington, DC 20044

v.

Attorneys for Respondent

*JOHN ASHCROFT, Attorney General

of the United States

Respondent OPINION OF THE COURT

AM BRO, Circuit Judge

On Petition for Review

of a Final Order of the Jan Knapik challenges the decision

Board of Immigration Appeals of the Board of Immigration Appeals

(No. A74-902-513) (BIA) that his conviction for attempted

reckless endan germent is a crime

invo lving m or a l tur pitude u n d er

Argued June 25, 2004 § 237(a)(2)(A)(i) of the Immigration and

Nationality Act (“INA”), 8 U.S.C.

Before: AMBRO, BECKER and § 1227(a)(2)(A)(i). Knapik argues that

GREENBERG, Circuit Judges crimes with a mens rea no greater than

recklessness cannot involve moral

(Opinion filed : September 17, 2004) turpitude because such crimes require

intent. He also argues that, even assuming

Steven Lyons, Esquire (Argued) reckless endan germent is a crime

Martin C. Liu and Associates, PLLC involving moral turpitude, attempted

627 Greenwich St., 12th Floor reckless endangerment is not. For the

New York, NY 10014 reasons that follow, we affirm the BIA’s

d e t e r m in a t i o n t h a t th e r e c k le s s

Attorney for Petitioner endangerment statute in this case defines a

crime involving moral turpitude, but we Knapik with a notice to appear, charging

agree with Knapik that his conviction for him with removability under 8 U.S.C.

attempted reckless endangerment is not § 1227(a)(2)(A)(i), which allows the

such a crime. Attorney General to order the removal of

any alien who has been convicted of a

I. Factual and Procedural Background

crime involving moral turpitude within

Knapik is a citizen of Slovakia. He five years of admission and for which a

legally entered the United States in June sentence of one year or more may be

1995. On September 16, 1996, he adjusted imposed. At the removal hearing, the

his status to that of lawful permanent Immigration Judge (“IJ”) held that

resident. He resides in New Jersey with Knapik’s conviction constitutes a crime

his father and sister who are both lawful involving moral turpitude and ordered him

permanent residents. In August 2000, removed from the United States. Knapik

Knapik pled guilty to the crime of timely appealed to the BIA.

attempted reckless endangerment in the

In May 2003, the BIA affirmed the

first degree in violation of New York

IJ’s decision. The BIA first observed that

Penal Law § 120.25.1 The plea arose from

attempt offenses are crimes involving

an incident in which, while intoxicated,

moral turpitude if the underlying offense

Knapik drove at an excessive rate of speed

involves moral turpitude. The BIA next

against the flow of traffic on the Staten

addressed the issue of criminal

Island Expressway. He pled guilty, was

recklessness. Relying on prior decisions,

sentenced to and served four months in

it concluded that moral turpitude can lie in

jail.

criminally reckless behavior. The BIA

In April 2000, the Immigration and also examined the aggravating factors in

Nationalization Service (INS) 2 served New York’s reckless endangerment

statute, analogized to prior BIA cases

involving manslaughter and assault with a

1

Section 120.25 provides: “A deadly weapon, and distinguished prior

person is guilty of reckless endangerment BIA cases involving simple assault. Taken

in the first degree when, under together, the BIA concluded that the

circumstances evincing a depraved elements of depravity, recklessness and

indifference to human life, he recklessly grave risk of death to another person are

engages in conduct which creates a grave sufficient to establish moral turpitude.

risk of death to another person.”

Knapik timely filed a petition for

2

On March 1, 2003, the INS ceased review of the BIA’s decision. We have

to exist as an independent agency within

the United States Department of Justice

and the INS’s functions were transferred to L. No. 107-296, §§ 441, 451, 471, 116

the Department of Homeland Security. Stat. 2135 (2002). The BIA remains

See Homeland Security Act of 2002, Pub. within the Department of Justice.

2

jurisdiction to review final orders of term encompasses. Particularly, he

removal pursuant to 8 U.S.C. § 1252(a). contends the BIA’s determination that

recklessness crimes may constitute moral

II. Standard of Review

turpitude is not entitled to deference. The

Under Chevron, U.S.A., Inc. v. First, Second, Fifth and Eighth Circuits,

Natural Res. Def. Council, Inc., 467 U.S. however, have concluded that courts

837 (1984), we review an agency’s should defer not only to the BIA’s

construction of a statute it administers definition of moral turpitude but also to its

under a two-step inquiry. If congressional determination that the elements of a

intent is clear from the statute’s language, criminal statute satisfy that definition. See

we must give effect to it as written. Id. at Cabral v. INS, 15 F.3d 193, 195 (1st Cir.

842-43. If Congress’s intent is silent or 1994) (“We therefore inquire whether the

ambiguous, we must decide if the agency’s agency interpretation was arbitrary,

action is based on “a permissible capricious, or clearly contrary to the

construction of the statute.” Id. at 843. statute.”); Michel v. INS, 206 F.3d 253,

263 (2d Cir. 2000) (stating that “in order to

We afford deference, however, only

affirm the BIA’s determination [in regard

when an agency construes or interprets a

to moral turpitude], we need only conclude

statute it administers. See id. at 843-44.

that its interpretation is reasonable and that

In Francis v. Reno, we refused to afford

it ‘considered the matter in a detailed and

Chevron deference to the BIA’s

reasoned fashion’” (citation omitted));

interpretation of the term “felony” as used

Hamdan v. INS, 98 F.3d 183, 184-85 (5th

in 18 U.S.C. § 16 because it is a general

Cir. 1996) (“We accord deference to the

criminal statute not implicating the BIA’s

BIA’s interpretation of questions such as

expertise. 269 F.3d 162, 168 (3d Cir.

those before us here” — i.e., whether

2001). In Sandoval v. Reno, we declined

Hamden’s record of conviction “support[s]

to give deference to the BIA’s decision as

a finding of moral turpitude.”); Franklin v.

to the effective date of a statute because

the “issue [of] a statute's effective date is

not one that implicates agency expertise in

“moral turpitude.” The term is not defined

a meaningful way. . . .” 166 F.3d 225, 239

in the INA, and “legislative history leaves

(3d Cir. 1999). Accordingly, we must

no doubt . . . that Congress left the term

decide which aspects of the BIA’s decision

‘crime involving moral turpitude’ to future

are entitled to Chevron deference.

administrative and judicial interpretation.”

Knapik argues that Chevron Cabral v. INS, 15 F.3d 193, 195 (1st Cir.

deference applies only to what “moral 1994); see also Jordan v. De George, 341

turpitude” means, 3 not to what crimes that U.S. 223, 234 (1951) (Jackson, J.,

dissenting) (stating that “Congress did not

see fit to state what meaning it attributes to

3

We clearly afford Chevron the phrase ‘crime involving moral

deference to the BIA’s definition of turpitude’”).

3

INS, 72 F.3d 571, 572 (8th Cir. 1995) III. Analysis

(stating “we must decide whether the BIA

An alien, even if a lawful

has reasonably interpreted its statutory

permanent resident, is subject to removal

mandate to deport aliens convicted of

if he or she has been convicted of a crime

crimes involving moral turpitude”). In

“involving moral turpitude” within five

contrast, the Ninth Circuit reviews de novo

years of the date of admission and the

whether a particular criminal statute

conviction is one for which a sentence of

involves moral turpitude. See, e.g.,

one year or longer may be imposed. 8

Rodriguez-Herrera v. INS, 52 F.3d 238,

U.S.C. § 1227(a)(2)(A)(i)(I)-(II). As for

240 n.4 (9th Cir. 1995); cf. Franklin, 72

the length of sentence requirement, though

F.3d at 578 (Bennett, J., dissenting)

Knapik received but a four month

(recognizing “a split of authority, or, at

s e n t e n c e , f i r st d e g r e e r e c k l es s

least, a fundamental difference in approach

endangerment is a class D felony, N.Y.

to or perception of the issue”).

Penal Law § 120.25, punishable by up to

We adopt the majority position and seven years imprisonment, id. at §

conclude that the BIA’s determination that 70.00(2)(d).

reckless endangerment crimes may involve

Thus the only issue we must decide

moral turpitude is entitled to Chevron

i s w h e t h e r a tt e m p t e d r e c k l e s s

deference. This issue goes to the heart of

endangerment in the first degree is a crime

the administrative scheme established

involving moral turpitude. This inquiry

under the INA. In this context, the BIA’s

entails a categorical approach, focusing on

conclusions as to reckless endangerment

the underlying criminal statute “rather than

implicate BIA expertise.

the alien’s specific act.” De Leon-

But in determining what the Reynoso v. Ashcroft, 293 F.3d 633, 635

elements are of a particular criminal (3d Cir. 2002) (citing Alleyne v. INS, 879

statute deemed to implicate moral F.2d 1177, 1185 (3d Cir. 1989)); see also

turpitude, we do not defer to the BIA. See Rodriguez-Herrera, 52 F.3d at 239-40

Michel, 206 F.3d at 262 (stating that when (stating that, in analyzing whether a crime

“the BIA is interpreting state or federal involves moral turpitude, “we must focus

criminal laws, we must review its decision on the crime categorically as defined by

de novo” (citing Hamdan, 98 F.3d at 185)). the statute, and not on the specific conduct

As discussed below, it is unclear what the of Rodriguez-Herrera”). Accordingly, “we

e l e m e n t s o f a t te m p t e d r e c k le s s look to the elements of the statutory state

endangerment (as opposed to reckless offense, not to the specific facts. We rely

endangerment) even are. This is not an on ‘what the convicting court must

issue that implicates the BIA’s expertise, necessarily have found to support the

and we decline to afford Chevron conviction and not to other conduct in

deference to the BIA’s decision relating to which the defendant may have engaged in

this matter. Our review of this issue is connection with the offense.’” Wilson v.

thus de novo. Ashcroft, 350 F.3d 377, 381-82 (3d. Cir.

4

2003) (quoting Steele v. Blackman, 236 Matter of Franklin, 20 I. & N. Dec. 867,

F.3d 130, 135 (3d Cir.2001)).4 868 (BIA 1994); Matter of Danesh, 19 I. &

N. Dec. 669, 670 (BIA 1988), and

Following the categorical approach,

decisions of our Court, see, e.g., De Leon-

and in light of our deferential review on

Reynoso, 293 F.3d at 636 (quoting with

the issue, the BIA did not act unreasonably

approval the following definitions of

in determining that New York’s reckless

moral turpitude: (1) “[c]onduct that is

endangerment statute defines a crime

contrary to justice, honesty, or morality”;

involving moral turpitude. But reviewing

and (2) “anything done contrary to justice,

de novo the BIA’s conclusions as to

honesty, principle, or good morals”

attempted reckless endangerment, we

(citations omitted)). As such, the BIA’s

conclude that the categorical nature of the

definition of moral turpitude was

moral turpitude inquiry compels the

reasonable.

conclusion that this crime does not involve

moral turpitude. Applying the BIA’s definition, the

New York statute under which Knapik was

A. Reckless Endangerment

convicted does not contain an intent

The BIA in this case defined moral requirement. To repeat, N.Y. Penal Law

turpitude as conduct that is inherently § 120.25 provides that a “person is guilty

base, vile, or depraved, contrary to the of reckless endangerment in the first

accepted rules of morality and the duties degree when, under circumstances

owed other persons, either individually or evincing a depraved indifference to human

to society in general. The BIA also noted life, he recklessly engages in conduct

that moral turpitude normally includes which creates a grave risk of death to

only acts that are malum in se (i.e., an act another person.”

that is inherently immoral). These

Knapik correctly notes that a strain

statements are in accord with long-

of BIA decisions equates moral turpitude

established BIA principles, see, e.g.,

with evil intent. Matter of Khourn, 21 I. &

N. Dec. 1041, 1046 (BIA 1997) (stating

4

Wilson is not a moral turpitude the BIA “has held that ‘evil intent’ is a

case. The language quoted related to requisite element for a crime involving

determining whether Wilson’s state drug moral turpitude” (citing Matter of Serna,

conviction constituted an “aggravated 20 I. & N. Dec. 579, 582 (BIA 1992)).

felony” under 8 U.S.C. § 1101(a)(43). See Matter of Flores, 17 I. & N. Dec. 225, 227

Wilson, 350 F.3d at 380-82. While (BIA 1980) (stating “evil or malicious

aggravated felony cases may be irrelevant intent is said to be the essence of moral

to the moral turpitude inquiry, we turpitude”); Matter of Abreu-Semino, 12 I.

nonetheless have endorsed a categorical & N. Dec. 775, 777 (BIA 1968)

approach for both types of cases. In this (concluding “crimes in which evil intent is

context, we believe the discussion in not an element, no matter how serious the

Wilson and similar cases is instructive. act or how harmful the consequences, do

5

not involve moral turpitude”). N. Dec. at 870-71, and Matter of Wojtkow,

18 I. & N. Dec. 111, 113 (BIA 1981),

In this vein, prior to 1976 the BIA

involve moral turpitude. Simple assault

was of the opinion that criminally reckless

does not. Matter of Fualaau, 21 I. & N.

conduct was not so debased as to involve

Dec. 475, 478 (BIA 1996).

moral turpitude. See, e.g., Matter of

Gantus-Bobadilla, 13 I. & N. Dec. 777 We hold that the BIA did not act

(BIA 1971). But in Matter of Medina the unreasonably in concluding New York’s

BIA reconsidered its position and first degree reckless endangerment statute

concluded “that moral turpitude can lie in is a crime involving moral turpitude. First

criminally reckless conduct.” 15 I. & N. degree reckless endangerment is a much

Dec. 611, 613 (BIA 1976). Examining the more severe offense than drunk driving,

Illinois definition of recklessness, the BIA which almost certainly does not involve

found persuasive that a moral turpitude. See Matter of Lopez-

Meza, 22 I. & N. Dec. 1188 (BIA 1999)

person acting recklessly

(expressing opinion that “a simple DUI

must consciously disregard a

offense” will almost never rise to the level

substantial and unjustifiable

of moral turpitude); cf. Dalton v. Ashcroft,

risk, and such disregard

257 F.3d 200, 205-06 (2d Cir. 2001)

must constitute a gross

(concluding that New York’s “driving

deviation from the standard

while intoxicated” statute does not

of care which a reasonable

constitute a “crime of violence” under the

person would exercise in the

INA). New York Penal Law § 120.25

situation. This definition of

contains aggravating factors, requiring that

recklessness requires an

a defendant create a “grave risk of death to

actual awareness of the risk

another person” “under circumstances

created by the criminal

evincing a depraved indifference to human

violator’s action.

life.” In this context, the BIA could

Id. at 613-14 (emphasis in text). reasonably conclude that the elements of

depravity, recklessness and grave risk of

In the twenty-eight years since

death, when considered together, implicate

Medina, the BIA consistently has

accepted rules of morality and the duties

interpreted moral turpitude to include

owed to society. Cf. Franklin, 72 F.3d at

recklessness crimes if certain statutory

573 (“In the framework of our deferential

aggravating factors are present. For

review, we cannot say the BIA has gone

example, the BIA limits moral turpitude to

beyond the bounds of reasonableness in

crimes in which a defendant consciously

finding that an alien who recklessly causes

disregards a substantial risk of serious

the death of her child by consciously

harm or death to another. Thus

disregarding a substantial and unjustifiable

recklessness crimes for assault with a

risk to life has committed a crime that

deadly weapon, Matter of Medina, or

manslaughter, Matter of Franklin, 20 I. &

6

involves moral turpitude.”). 5 [or she] engages in conduct which tends to

effect the commission of such crime.”

B. Attempted Reckless Endangerment

People v. Kassebaum, 744 N.E. 2d 694,

We do not disagree with previous 698 (N.Y. 2001) (emphasis added)

BIA decisions concluding attempt offenses (quoting N.Y. Penal Law § 110.00). Yet

can be crimes involving moral turpitude. by its very nature acting recklessly is

See, e.g., Matter of Davis, 20 I. & N. Dec. inconsistent with the mens rea required for

536, 545 (BIA 1992) (stating “[t]here is no attempt. A person cannot intend to

distinction for immigration purposes in commit a criminally reckless act. He or

respect to moral turpitude, between the she either acts recklessly or does not.

commission of the substantive crime and Addressing the statute at issue in our case,

the attempt to commit it” (citation the New York Appellate Division agreed

omitted)). We also take no issue with with this sentiment, concluding that the

previous BIA decisions that it cannot go “ c ri m e o f a t te m p t e d reckle s s

behind a valid final record of conviction endangerment is nonexistent since it is a

— i.e., that the BIA cannot examine the nonintent offense.” People v. Trepanier,

particular facts of a case. See, e.g., Matter 84 A.D. 2d 374, 380 (N.Y. App. Div.

of C-, 20 I. & N. Dec. 529, 532 (BIA 1982) (affirming the lower court’s decision

1992). In its opinion in this case, however, to dismiss the indictment as to this charge).

the BIA glosses over the peculiar conflict Further, New York courts have concluded

between attempt crimes and recklessness.6 in other contexts that the concept of an

Under New York law, a “person is atte mpte d r e c kl e s s n es s c r im e is

guilty of an attempt to commit a crime nonsensical. See, e.g., People v. Terry,

when, with intent to commit a crime, he 104 A.D. 2d 572, 573 (N.Y. App. Div.

1984) (stating “one cannot legally be

found guilty of attempted murder in the

5

We also reject Knapik’s second degree by reckless conduct”).

contention that his conviction is The only contrary authority in New

distinguishable from manslaughter or York is People v. Foster, 19 N.Y.2d 150

assault with a deadly weapon because the (1967). Foster was charged with

reckless endangerment statute does not manslaughter in the first degree and

require injury to an individual. With ultimately pled guilty to attempted

regard to reckless acts, moral turpitude manslaughter in the second degree. On

inheres in the conscious disregard of a appeal, Foster argued his conviction had

substantial and unjustifiable risk of severe no basis in law and violated due process.

harm or death. Knapik’s good fortune in The New York Court of Appeals rejected

not injuring or killing anyone does not this argument, concluding that Foster

change the quality of his actions. knowingly accepted his plea “in

6

satisfaction of an indictment charging a

As noted previously, we exercise

crime carrying a heavier penalty. In such

de novo review in resolving this issue.

7

case, there is no violation of defendant’s Cir. 2002) (quoting Drakes v. Zimski, 240

right to due process.” Id. at 153. F.3d 246, 248 (3d Cir. 2001)). 7 This

means, in the context of our case, that the

Our case, how eve r, is

elements of the underlying offense must

distinguishable from Foster. The concern

necessarily establish that all convictions

driving Foster was manipulation of the

involve moral turpitude. Wilson, 350 F.3d

state criminal process — i.e., a defendant

at 381-82. See also Michel, 206 F.3d at

may not induce a plea agreement, receive

263; Okoroha v. INS, 715 F.2d 380, 382

a reduced sentence and then challenge his

(8th Cir. 1983).8 Attempted reckless

or her conviction. See id. at 153-54 (“The

defendant declined to risk his chances with

a jury. He induced the proceeding of

7

which he now complains. . . . While there Valansi, like Wilson (see note 4

may be question whether a plea to and accompanying text), is an aggravated

attempted manslaughter is technically and felony, not moral turpitude, case.

logically consistent, such a plea should be 8

In an opinion issued the same day

sustained on the ground that it was sought

as the opinion in this case, we engaged in

by [the] defendant and freely taken as part

an extensive analysis of the categorical

of a bargain which was struck for the

approach as applied in aggravated felony

defendant’s benefit.” (emphasis added)).

cases. See Singh v. Ashcroft, No. 03-

In contrast, Knapik’s plea did not decrease

1532, __ F.3d __ (3d Cir. Sept. __, 2004).

the level of the charged offense or subject

Singh noted that while most prior Third

him to a less severe sentence. He was

Circuit cases had employed the “formal

charged with first degree reckless

categorical approach” from Taylor v.

endangerment and he pled guilty to

United States, 495 U.S. 575, 600 (1990) —

a t t em p t e d f i r st d e g r e e r e c k l es s

which focuses exclusively on the statutory

endangerment. More importantly, we are

elements of the underlying offense —

not reviewing a due process challenge to a

others deemed it permissible to look

state court conviction; we are assessing the

beyond the statutory elements of the

immigration implic ations of that

underlying offense.

conviction.

As noted previously, the moral In reconciling these cases, Singh

turpitude inquiry is categorical. De Leon- delineated two situations in which the

R eyn oso, 293 F.3d at 635; formal categorical approach properly may

Rodriguez-Herrera, 52 F.3d at 239-40. be abandoned. The first is when the terms

Under the categorical approach, we have of the statute on which removal is based

cautioned against going “beyond the invites inquiry into the facts of the

offense as charged and scrutiniz[ing] the underlying conviction. For example,

underlying facts” of a case to determine Nugent v. Ashcroft, 367 F.3d 162 (3d Cir.

whether a crime involves moral turpitude. 2004), and Munroe v. Ashcroft, 353 F.3d

Valansi v. Ashcroft, 278 F.3d 203, 214 (3d 225 (3d Cir. 2003), concerned 8 U.S.C.

8

endangerment is not a crime involving

moral turpitude because, categorically

§ 1101(a)(43)(M)(i), which defines an speaking, the concept makes no sense.

aggravated felony as an offense that Attempt (necessarily requiring intent to

“involves fraud or deceit in which the loss commit a crime) is inconsistent with

to the victim or victims exceeds $10,000.” recklessness (which, by definition, implies

In both cases, however, the relevant acting without intent). Terry, 104 A.D. 2d

criminal statute did not include a “loss at 573; Trepanier, 84 A.D. 2d at 380. Put

greater than $10,000” element. See differently, we cannot say that a conviction

Nugent, 367 F.3d at 168 n.2 (quoting 18 for attempted reckless endangerment

Pa. Cons. Stat. § 3922(a)); Munroe, 353 necessarily involves moral turpitude

F.3d at 226 (citing N.J. Stat. Ann. § 2C:20- without also abandoning the categorical

4). Nonetheless, both Nugent and Munroe approach.9

found it proper to examine the amount of

loss established. See Nugent, 367 F.3d at

175 (noting the parties had “stipulated that convicted is divided into discrete

Nugent’s state conviction was based on a subsections, and (2) it was unclear from

bad check amounting to only $4,831.26”; the BIA’s decision which subsection it

Munroe, 252 F.3d at 226 (looking to the believed Hamdan was convicted under and

indictment and record of conviction). which subsections implicated moral

turpitude).

The second exception to the

categorical approach is when the Examination of these cases further

underlying criminal statute is written in the supports our position in this case. Both

disjunctive (i.e., the statute criminalizes Nugent and Munroe dealt with a provision

similar but legally distinct conduct) such of the INA, 8 U.S.C. § 1101(a)(43)(M)(i),

that some, but not all, convictions under not relevant to the moral turpitude inquiry.

the statute place the alien within the And unlike the statutes at issue in Valansi

removal category for im migra tion and Hamdan, New York’s reckless

purposes. Valansi was such a case. 278 endangerment statute is written neither in

F.3d at 214-17 (in entering plea for the disjunctive nor in subsections.

embezzlement of monies from her Accordingly, the Government has supplied

employer bank, petitioner avoided (and we can think of) no principled reason

admitting that she intended to defraud, not to apply the formal categorical

thus not qualifying as an aggravated felony approach.

for removal purposes). See also Hamdan,

9

98 F.3d at 187-89 (granting the petition for While the Government does not

review and remanding for further ask us specifically to abandon the

examination of the record of conviction categorical approach in cases such as ours

because (1) the Louisiana kidnapping (i.e., when it counsels against deportation),

statute under which Hamdan was that would be the effect. Under the

9

*****

In this context, we affirm the BIA’s

decision that New York Penal Law

§ 120.25, reckless endangerment in the

first degree, is a crime involving moral

turpitude, but we reverse the BIA’s

conclusion that Knapik’s state conviction

for attempted reckless endangerment in the

first degree is a crime involving moral

turpitude. Therefore, we grant Knapik’s

petition for review and reverse the BIA’s

order of removal.

categorical approach, courts and the BIA

have long declined to consider arguments

that, despite the elements of an offense, an

alien’s individual conduct did not fit

w i t h in a p articular IN A -def ined

deportation category. See, e.g., Alleyne,

879 F.2d at 1185 (citations omitted);

Okabe v. INS, 671 F.2d 863, 864-65 (5th

Cir. 1982); Matter of C-, 20 I. & N. Dec. at

532 (citations omitted). Now that “the

shoe is on the other foot,” it would be

perverse irony to allow the Government to

use the categorical approach in petitioner

appeals but to abandon that approach when

the Government appeals.

10